a public defender

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The Windypundit finishes his story about his experience in traffic court with this final post and falls victim to testilying. The facts:

[The trooper] walked up and told me I had passed an emergency vehicle parked on the shoulder without changing lanes. My confusion must have shown, because he explained that there was a truck with flashing lights on the shoulder in the construction zone.

While he went back to his car to write the ticket, my wife and I discussed the situation, and neither of us could remember the truck. When the trooper returned, my wife asked him to explain what had happened, and he again said there was a truck with flashing lights on the shoulder, and that my lane change had taken me closer to it when I should have been giving it more room.

So he hired a lawyer [my previous post on the hiring process here] and went to trial. Lo and behold, the testilying:

The prosecutor said he was ready, so the cop and I were sworn in together in preparation for our testimony. Then the prosecutor started questioning the cop, and a strange thing happened.

The cop changed his story.

Sad as it may sound, it’s not that strange. Moving on,

When he originally stopped me, he had told me twice that I passed a truck. In court, however, he testified that I passed a State Police car that had pulled someone over. He also said there were no other vehicles nearby, and that I didn’t slow down.

My first thought was that he had changed the vehicle to a police car because that sounds worse than a construction truck. When I thought about it later, however, I remembered that one of the elements of the crime was that the emergency vehicle had to be engaged in its official duties. My lawyer had thought he might have a chance of getting a dismissal if nobody was able to put it on the record that the construction truck was on duty. How would the trooper know? Did he go back and interview the occupants? I wondered if maybe he changed his story because a police car performing a traffic stop is clearly doing its official duties.

There are more benign explanations as well, such as bad memory. The scenario he described is typical of a special enforcement effort for this law: One cop spots an unrelated infraction and pulls the offender over, then a second cop pulls over people who pass the first cop. If the trooper did a lot of those recently, maybe he just got one of them confused with my case. Or maybe, despite identifying me as the guy he pulled over, he has no actual memory of the stop and just made up something plausible. In either case, he should have taken notes, but maybe he’s bad at that, or he forgot, or his dog ate them.

What’s the likeliest scenario? I’m going with “he has no actual memory and made something up”. One might say, in this case it’s not that big a deal. Yes, there is a conviction, but it’s a traffic violation and the penalty is a fine. But it is indicative of a greater problem, which has far more serious impact in felony trials. Exaggerations are routine, blamed on bad memory. Sometimes they’re written off as harmless, but never should be. Witnesses have to be held to the highest standard, for in criminal cases, someone’s liberty hangs on the veracity of their statements. The State is often quick to prosecute lay witnesses that perjure themselves, but rarely do you hear of the law enforcement official that is similarly charged.

Here is the text of Alan Dershowitz’s testimony before Congress in 1998, wherein he discussed perjury and testilying. Here is a copy of a 1996 Law Review Article from the University of Colorado Law School by Christopher Slobogin, entitled “Testilying: Police perjury and what to do about it”.